Should the class-of-one theory under which state actors may be sued for arbitrary discrimination against individuals apply equally to public employers with regards to their hiring, firing, and other decisions, or should public employers be exempted from such claims due to the subjective nature of employment decisions?
Under what is known as the class-of-one theory, an individual plaintiff can bring an Equal Protection claim against a state actor for "irrational and wholly arbitrary treatment." The person is a "class-of-one" when she alleges that the government is subjecting only her to differing and unique treatment compared to others similarly situated. This differs from a traditional Equal Protection claim, in which a person alleges discriminatory acts by the government against an entire group of people treated differently because of a protected characteristic like race. Anup Engquist brought such a claim against her employer, the Oregon Department of Agriculture, alleging that it arbitrarily failed to promote her to a position for which she was qualified, allowed a supervisor with whom she had an acrimonious relationship to harass and degrade her, and eventually laid her off. The Ninth Circuit Court of Appeals, in overturning the District Court that found in her favor on the Equal Protection claim, held that the class-of-one theory is inapplicable to decisions made by state employers with regard to their employment decisions. Engquist has appealed the decision to the Supreme Court, arguing that there is no basis in the Equal Protection Clause for a limitation on class-of-one claims in the employment context. The Oregon Department of Agriculture and the Ninth Circuit assert that class-of-one cases are appropriate when the government is acting as regulator, but not as employer.
Questions as Framed for the Court by the Parties
The Ninth Circuit below vacated the jury's verdict in favor of Petitioner Engquist and created a divisive split with the seven Circuits that apply the "rational basis" analysis to public employees who claim their termination was a result of unequal treatment, even if that treatment did not result from the employee's membership in a suspect class. The question presented is:
Whether traditional equal protection "rational basis" analysis under Village of Willowbrook v Olech, 528 US 562, 120 S Ct 1073, 145 L Ed 2d 1060 (2000), applies to public employers who intentionally treat similarly situated employees differently with no rational bases for arbitrary, vindictive or malicious reasons?
In Engquist v. Oregon Department of Agriculture, the Supreme Court will resolve a circuit split regarding whether an individual government employee can bring an Equal Protection claim against her employer, a state government agency, for treating her differently than other similarly-situated employees. Petitioner Anup Engquist, an Indian-born woman, was hired in 1992 as an international food standards specialist in the laboratory division of the Oregon Department of Agriculture. Engquist was hired by the director of the laboratory division, Norma Corristan, a Mexican-American woman. Engquist had repeated difficulties with her co-worker, respondent Joseph Hyatt, and on multiple occasions she complained to Corristan that Hyatt unnecessarily monitored her and made false statements about her. In response to these complaints, Corristan made Hyatt attend diversity and anger management training programs. In 2001, respondent John Szczepanski, an Assistant Director at the Department of Agriculture, re-organized the laboratory division and attempted to fill a management position there. At this time, Szczepanski and Hyatt both told customers and co-workers that they were preparing a new personnel plan and were "working on 'getting rid of'" Corristan and Engquist. Both Engquist and Hyatt applied for the management position; it was given to Hyatt even though Engquist had more education and more experience with customer service. At trial, Szczepanski explained that he chose Hyatt because of his business and management experience and his previous lab experience as a chemist.
Shortly after Hyatt was hired for the laboratory management position, Oregon's governor announced a budget crisis and the Department of Agriculture began discussing budget reductions. During this time period, Hyatt told a client that "Corristan and Engquist had run the ESC 'into the ground,' they were on their way out, and he would take over and put it all back together." Corristan's position was quickly eliminated, and a few months later, Engquist was told that her position was going to be eliminated as well. Engquist's collective bargaining agreement allowed her to "bump" into another position; however the personnel manager determined that she was unqualified for the only other position at her level, and Engquist declined to accept a lower position with the accompanying pay cut.
Since being laid off, Engquist has been unable to find full-time work, despite applying for more than 200 jobs. At trial, her vocational expert testified that she was unlikely to find employment in her occupation. Even respondents' vocational expert testified that there were not many opportunities for work in Engquist's narrow fields of microbiology, food technology, and food science.
Engquist brought a suit against the Oregon Department of Agriculture, Hyatt, and Szczepanski, alleging violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 1981, equal protection, procedural and substantive due process, and intentional contract interference. The defendants challenged Engquist's use of the "class-of-one" equal protection theory, which allows citizens to assert an Equal Protection violation if they feel that the state has treated them differently than someone else similarly situated without a rational basis. The "class-of-one" theory is a departure from traditional Equal Protection claims, where citizens assert that the state discriminated against them based on their membership in a particular group or class. However, the trial court determined that the "class-of-one" theory was viable, and the jury found for Engquist on the contract interference and equal protection claim, and awarded her over $400,000 in damages.
The Ninth Circuit subsequently struck the jury's verdict for Engquist, holding that the "class-of-one" theory is inapplicable to public employers. The appellate panel admitted that the Supreme Court has recognized "class-of-one" equal protection actions in Village of Willowbrook v. Olech, which permitted a village resident to sue a municipality under a "class-of-one" theory. The Ninth Circuit distinguished cases such as Olech, where the government agency is acting as a regulator, from cases such as Engquist, where the government agency is acting as an employer or "proprietor," and rejected the "class-of-one" application to the latter. Engquist petitioned for a writ of certiorari, arguing that the Ninth Circuit should have followed other circuits which have recognized the "class-of-one" theory of equal protection in the government-as-employer context; cert was granted on January 11, 2008.
The Equal Protection Clause and "Class-of-One" Theory
The Supreme Court acknowledged the class-of-one theory of equal protection in a very short per curiam opinion in Village of Willowbrook v. Olech. Traditionally, equal protection claims arose when an individual alleged that the state had discriminated against him because of his membership in a particular class of people. The class-of-one theory allows for an individual to assert state discrimination where he or she has been "intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment." The question before the Court in this case is whether the "class-of-one" theory can be used in an employment discrimination situation, where the state actor is the employer.
Petitioner Anup Engquist argues that the Equal Protection Clause protects individual people, not just groups of people, and that the government is prohibited from "singling out individuals for harsh treatment without a rational basis, even if no other person falls within the same 'classification.'" She points to the text of the Fourteenth Amendment, which specifies that a state shall not deny equal protection of the laws to "any person." Engquist also offers historical support for this claim, citing statements made by the framers of the Amendment which indicate that the Equal Protection Clause is "is 'personal' and extends to 'every man.'"
Respondents Oregon Department of Agriculture, Joseph Hyatt, and John Szczepanski (collectively "the ODA"), claim that Engquist's textual interpretation of the Fourteenth Amendment is too selective. They point out that she emphasizes the "any person" language, but does not address the "of the laws" language, which they argue indicates that the Equal Protection Clause only protects legislative, and not administrative, action. In addition, the ODA argues that it was not really the framers' intent for the Equal Protection Clause to apply to "any person," since the Fourteenth Amendment was enacted to address post-slavery "class-legislation," and also did not originally apply to women.
Engquist next points out that after the Supreme Court's Olech decision, nine other circuits have used a traditional equal protection analysis for class-of-one claims in public employment contexts. However, the ODA argues that the post-Olech case law is not quite as clear as Engquist claims. The other circuits' decisions do not seem to analyze the wisdom of using the class-of-one theory; they simply apply it without thought. In the words of Judge Richard Posner of the Seventh Circuit: "May the Court enlighten us; the fact that the post-Olech cases are all over the map suggests a need for the Court to step in and clarify its 'cryptic' per curiam decision."
The State as Regulator and the State as Employer
The Ninth Circuit and the ODA have both claimed that the class-of-one theory is not applicable in the public employment context because when the government is acting as an employer, it is afforded more leeway than when it acts as a regulatory body. They explain that there is a distinction between the state acting in the role of a "proprietor" and the state acting in the role of a "lawmaker," and cite a Supreme Court decision which states that "the government as employer indeed has far broader powers than does the government as sovereign." Because of this distinction, in their view the government is allowed to restrict the constitutional rights of its employees in ways that it would not be permitted to do with private citizens. For example, the hair length of a police officer may be regulated by the police department, a state agency acting as his employer, but the state would clearly not be permitted to dictate the length of ordinary citizens' hair.
Furthermore, the ODA suggests that applying the class-of-one theory in cases brought by public employees is inappropriate given the nature of employment decisions. They point out that personnel decisions inherently single out individuals and are often extremely subjective determinations. Since the government-as-employer will always treat one employee somewhat differently than another, the class-of-one equal protection analysis in the public employment context may result in a jury finding discrimination "simply because its members do not believe that a proffered reason for an employment action is rational enough to have convinced them to take that action."
Ms. Engquist's response is that public employers are state actors, and public employees "persons," for purposes of the Fourteenth Amendment. She states that the government is bound by the Constitution when it is in the role of an employer, just as it is when in the role of a legislator or regulator; the Equal Protection Clause does not distinguish the state as "regulator," "law enforcer," or "employer." She points out that the Fourteenth Amendment does indeed constrain public employers in other contexts. For example, the Supreme Court has held that "strict scrutiny," the standard used in equal protection claims when a fundamental right or suspect class is involved, is the correct standard of review to use for racial classifications in a public employment situations. She argues that the Ninth Circuit and the ODA have "ignored the fundamental distinction between limiting a constitutional right and eliminating it altogether."
The Floodgate Problem, and Possible Solutions
One of the primary concerns of the Ninth Circuit judges was that if they were to allow these class-of-one claims by employees against their public employers, there would be an immense flood of cases, obligating the federal courts to decide an entire array of personnel issues. They worried that the claims would not be limited to termination claims, but would include promotions, salary decisions, benefits, transfers, and disciplinary actions. Both petitioner and respondents in this case seem to understand the importance of this issue, as each party addresses it extensively in their brief.
The ODA claims that if every governmental employment decision became subject to judicial scrutiny in federal courts, there will be a chilling effect on public employers. They argue that when a group or class is alleging discrimination, there is a large enough sample size to reveal whether or not the individuals were truly discriminated against because of their membership in that class. In contrast, in class-of-one cases the sample size is extremely reduced, and it is more difficult to tell whether difference in treatment was legitimate or not. Because employment decisions are oftentimes highly subjective, they claim that "second-guessing" by federal judges is inappropriate in most cases, and that it will "chill the exercise of the employer's discretion, leading to government inefficiencies and poorer public service."
Engquist contends that there are many safeguards already in place to prevent the federal judiciary from being overwhelmed with personnel decisions. The class-of-one plaintiff has the burden of proving three separate elements of a claim: the government treated her differently from other similarly situated individuals, the difference in treatment was intentional, and the difference in treatment was not rationally related to any legitimate governmental purpose. In her view, the fact that only very few of these claims have ever succeeded demonstrates that simply requiring proof of the elements restricts the number of potential cases. In addition, Engquist points out that various district courts have been hearing "class-of-one" employment cases for years, both pre- and post-Olech, and have not suffered from clogged dockets. The class-of-one claims are also limited by the numerous legitimate objectives of public employers, such as having professional, competent, and collegial employees. She also observes that courts have many procedural requirements, such as the Federal Rules of Civil Procedure, which help ensure that only cases with potential merit are heard, and keep the system running smoothly.
The ODA argues alternatively that if the Supreme Court does decide that class-of-one cases in the public employment context are appropriate, they should be highly restricted. They suggest that the Court impose strict requirements which a potential plaintiff must fulfill in order to bring a class-of-one equal protection claim. First, they request a highly demanding "similarly situated" test, and refer to standards that other circuits have developed. For example, the Seventh Circuit requires that the plaintiff be "prima facie identical in all respects" to the person who was treated differently, and the Eighth Circuit requires that the plaintiff be treated differently "in the same time period." Next, the ODA proposes that the plaintiff must show that there was "no conceivable rational basis" and that "ill-will or animus" was the only possible reason for the difference in treatment. With these requirements in place, they argue, even if the Court finds for Enguist and recognizes the class-of-one claims in a public employment context, she will still lose her case since she cannot show that similarly situated employees in the ODA were actually treated differently.
"No state shall.deny to any person within its jurisdiction the equal protection of the laws." This simple prohibition from the Fourteenth Amendment to the Constitution has been the subject of some of the Supreme Court's most controversial decisions. It was used to challenge discrimination against African Americans in Plessy v. Ferguson,163 U.S. 537 (1896)and Brown v. Board of Education, 347 U.S. 483 (1954), against women in Frontiero v. Richardson, 411 U.S. 677 (1973), against homosexuals in Romer v. Evans, 517 U.S. 620 (1996) andagainst the mentally retarded in Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985). The basic inquiry in any case involving alleged violations of the Equal Protection Clause is whether the state has discriminated against a suspect class or interfered with the exercise of a fundamental right. If it has, the Court will apply a form of heightened scrutiny in its review of the state action. If there is no suspect class against whom the state is discriminating, and no fundamental right being interfered with, the Court will apply the "rational basis test," under which it "seek[s] only the assurance that the classification at issue bears some fair relationship to a legitimate public purpose."
Many Equal Protection claims are brought by a person alleging that they are part of a class of people against which the state has discriminated. Under the "class of one theory" recognized by the Court in Village of Willowbrook v. Olech, a plaintiff can bring an Equal Protection claim where "she has been intentionally treated differently from others similarly situated and.there is no rational basis for the difference in treatment." In other words, one person can bring a claim under the Equal Protection Clause if that person has been treated in an "irrational and wholly arbitrary" way by state actors, even if that person cannot demonstrate that he or she is part of a group which as a whole has been treated differently.
Equal Protection violations can arise from a variety of state actions, from public education to the issuance of welfare benefits to zoning decisions. The Ninth Circuit's decision in this case would prevent the bringing of class-of-one equal protection claims against public employers for their employment decisions. Many of the amici in this case argue that if upheld, the extent and impact of such a prohibition should be carefully considered. For example, groups who advocate for the rights of gays and lesbians, the elderly, and the disabled claim that, though not constitutionally protected as a suspect class, these groups are still vulnerable to invidious discrimination in the workplace because of their specific characteristics. They argue that, should the Ninth Circuit's decision be upheld, it must be narrowly construed to those "true" class-of-one claims where a person is discriminated against for no discernable reason, and that those employees who are discriminated against based on their sexual orientation, age, or disability should continue to have recourse to Equal Protection claims because if their membership in a group. Additionally, the National Association of Police Organizations, the North Carolina Troopers Association, and the National Fraternal Order of Police cite the fact that less than half of U.S. states allow law enforcement officers to engage in collective bargaining with their local employers, and that as a result, the ability to bring class-of-one Equal Protection claims for arbitrary and politically motivated firings and suspensions is for many officers a key protection against capricious employer action.
Other amici present more broad-ranging arguments in response to the Ninth Circuit's ruling. The Rutherford Institute, the AFL-CIO, and various educational entities claim that depriving the approximately 6.5 million federal, state, and local government employees of the right to bring Equal Protection class-of-one claims is at odds with Court precedent establishing that the Equal Protection clause applies to the government as employer. But the Oregon Department of Agriculture argues that it is precisely because employment decisions are so often multi-factored that the judicial system should not be used for review of the multitude of state personnel choices. It argues that even though such claims will be brought under the deferential rational basis test and as a result must meet a high burden to succeed, the proper forum for them is elsewhere.
In resolving the circuit split created by the Ninth Circuit's decision, policy arguments may play a large role, and the Court will be invited to answer a number of questions. First, should it matter at all whether allowing state employees to bring Equal Protection claims against their employers will "open the floodgates" of litigation? If so, is there a real danger in overloading the federal court system with such claims from litigants who think they will succeed under rational basis review? And finally, is there a way to clarify the appropriate bounds of class-of-one litigation without exempting public employment claims entirely? If the Court clarifies the meaning of its skeletal opinion in Olech, the above issues will likely be resolved.
The issues presented in this case make clear that the Equal Protection Clause continues to engender heated discussions concerning its original meaning and applicability in diverse situations. Both parties in this case address the question of whether those who drafted the Fourteenth Amendment may have intended for it to apply to state employers making individual employment decisions, and both also discuss the possible implications for federal courts if such claims were to be broadly or narrowly allowed. But neither offers an answer, as one might hope the Supreme Court will, to the question of whether the "floodgates of litigation" argument even matters in the context of Fourteenth Amendment protections. While the precise legal issue of whether class-of-one claims may be brought in the government employment context will undoubtedly be resolved by the Court, it will be interesting to see whether it also chooses to address the extensively-argued and unique policy concerns presented.Written by: